Sharon Lynne Bottoms v. Pamela Kay Bottoms ( 1999 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Lemons and Senior Judge Cole
Argued at Richmond, Virginia
SHARON LYNNE BOTTOMS
MEMORANDUM OPINION * BY
v. Record No. 0589-98-2 JUDGE MARVIN F. COLE
JUNE 29, 1999
PAMELA KAY BOTTOMS
FROM THE CIRCUIT COURT OF HENRICO COUNTY
Buford M. Parsons, Judge
Donald K. Butler (Mary Bauer; Michael P.
Adams; Matthew Coles; Morano, Colan and
Butler; American Civil Liberties Union
Foundation of Virginia; Lesbian and Gay
Rights Project, American Civil Liberties
Union Foundation, on brief), for appellant.
Maureen L. White (Richard R. Ryder;
Theodore N. I. Tondrowski, on brief), for
appellee.
In this domestic relations cause, Sharon Lynne Bottoms
(mother) challenges a decision of the Henrico County Circuit
Court establishing her visitation rights with Tyler Doustou, who
is in the custody of Pamela Kay Bottoms (grandmother). Mother
contends that the trial court erred when: (1) as a condition of
mother’s visitation, it excluded all contact between Tyler and
April Wade; (2) it denied mother’s request to participate more
fully in Tyler’s educational development; (3) it denied mother’s
*Pursuant to Code § 17.1-413, recodifying Code § 17-116.010,
this opinion is not designated for publication.
request for expanded visitation rights; and (4) it failed to
order family counseling. We find no merit to these claims and
affirm.
In Bottoms v. Bottoms, 249 Va. 410, 419, 457 S.E.2d 102,
107 (1995), the Supreme Court of Virginia found that mother was
unfit and remanded the case to the Henrico County Circuit Court
to award custody of Tyler to grandmother. Later that same year,
mother filed a petition for modification of custody and
visitation of her son in the Henrico County Juvenile and
Domestic Relations District Court. At the conclusion of the
proceeding in the district court, the court denied the petition
for transfer of custody and declined to rule on the request for
expanded visitation and family counseling. Mother appealed this
decision to the circuit court, expressly withdrawing her
petition for custody and challenging only the visitation
adjudication. Following a hearing, the circuit court issued its
order, which placed a number of restrictions on visitation
between mother and Tyler. Mother appealed this order to the
Court of Appeals.
In an unpublished opinion, this Court reversed the order of
the circuit court. See Bottoms v. Bottoms, No. 2157-96-2 (Va.
Ct. App. July 29, 1997). Believing that the circuit court
thought it was required to dispose of the visitation question
based solely on mother’s sexual orientation, and then ignored
other pertinent factors, this Court reversed the circuit court
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and remanded the matter “for reconsideration of the evidence
consistent with this opinion, including any additional evidence
deemed appropriate by the court to a proper disposition of the
petitions.” Id., slip op. at 6.
On remand, an evidentiary hearing was held before the
circuit court on February 23, 1998. Five witnesses provided
testimony to the court in connection with the visitation
petition. The guardian ad litem for the infant son gave a
report to the court. On March 4, 1998, the circuit court
entered an order requiring that all visitation “shall occur
outside the presence of April Wade, it being expressly provided
that Sharon Bottoms will permit no contact between Tyler and
April Wade.” Mother’s petition was denied in all other
respects, except that she was granted two weeks visitation
instead of one in the summer.
Mother contends that there is no substantial evidence
supporting the circuit court’s decision to continue excluding
Wade from contact with Tyler and claims that the visitation
exclusion violates Virginia law, as well as firmly-established
guarantees of the Equal Protection Clause and the Due Process
Clause of the Fourteenth Amendment of the United States
Constitution. These constitutional arguments were not made in
the trial court, and the trial judge was never asked to rule on
them. Further, mother filed written objections to the circuit
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court order of March 4, 1998, and no objection was made to the
order on any constitutional grounds.
Rule 5A:18 serves an important function
during the conduct of a trial. It places
the parties on notice that they must give
the trial court the first opportunity to
rule on disputed evidentiary and procedural
questions. The purpose of this rule is to
allow correction of an error if possible
during the trial, thereby avoiding the
necessity of mistrials and reversals. To
hold otherwise, would invite parties to
remain silent at trial, possibly resulting
in the trial court committing needless
error.
Gardner v. Commonwealth, 3 Va. App. 418, 423, 350 S.E.2d 229,
232 (1986); see also Cottrell v. Commonwealth, 12 Va. App. 570,
574, 405 S.E.2d 438, 441 (1991) (Rule 5A:18 barred consideration
of constitutional question not raised in trial court); Jacques
v. Commonwealth, 12 Va. App. 591, 593, 405 S.E.2d 630, 631
(1991) (Rule 5A:18 barred consideration of statutory argument
not raised in trial court). The ends of justice exception does
not permit consideration of the question because there has been
no miscarriage of justice. Cf. Reed v. Commonwealth, 6 Va. App.
65, 70, 366 S.E.2d 274, 277 (1988). Therefore, we do not
consider these constitutional issues. See Rule 5A:18.
In considering a petition to change child visitation, the
test to be applied has two prongs: (1) has there been a change
in circumstances since the most recent visitation award; and (2)
would a change in visitation be in the best interests of the
child. See Keel v. Keel, 225 Va. 606, 611-12, 303 S.E.2d 917,
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921 (1983) (applying this standard to petition for change in
custody); Fariss v. Tsapel, 3 Va. App. 439, 442, 350 S.E.2d 670,
672 (1986) (applying same standard to petition for change in
visitation). Thus, despite changes in circumstances, there can
be no change in visitation unless such change will be in the
best interest of the child. The second prong of the test is the
most important because, in the final analysis, the best
interests of the child are what must be protected by the court.
See Keel, 225 Va. at 611-12, 303 S.E.2d at 921. The parties
agree, and we find that the circumstances have changed since the
last award in the circuit court on September 21, 1993, and we
thus proceed to the second prong of the Keel test to determine
whether the evidence supports the trial court’s ruling regarding
visitation.
Well-established principles guide our deliberations. The
judgment of the trial court is presumed to be correct, and the
burden is on him or her who assails it to show that it is
plainly wrong. See Forbes v. Haney, 204 Va. 712, 715, 133
S.E.2d 533, 535 (1963). “‘For purposes of appellate review, a
trial court’s determination is considered to have settled all
conflicts in the evidence in favor of the prevailing party, and
the prevailing party’s evidence is entitled to all inferences
fairly deducible therefrom.’” Haase v. Haase, 20 Va. App. 671,
684, 460 S.E.2d 585, 591 (1995) (citation omitted). Because the
trial judge saw the witnesses, heard the evidence, has been in
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close contact with the family situation for several years, has
had an opportunity to determine the credibility of the witnesses
and parties and the weight to be accorded their testimony, his
decision is peculiarly entitled to respect. See, e.g., Brooks
v. Rogers, 18 Va. App. 585, 587, 445 S.E.2d 725, 726 (1994).
In determining the best interests of the child in a
visitation case, a court must consider all of the factors set
forth in Code § 20-124.3. See Sargent v. Sargent, 20 Va. App.
694, 701, 460 S.E.2d 596, 599 (1995). The failure to consider
all of the factors applicable to the case is reversible error.
A trial court need not, however, “‘quantify or elaborate exactly
what weight or consideration it has given to each of the
statutory factors.’” Id. at 702, 460 S.E.2d at 599 (citation
omitted). We find no merit to mother’s argument that the trial
court must make specific findings of fact to justify its
decision.
In a letter addressed to counsel dated March 4, 1998, the
trial judge stated that he had reviewed the evidence and that
“after careful consideration of all, it remains my finding that
the best interest of the child requires that the visitation with
his mother be out of the presence of April Wade.” This finding
was embodied in an order entered on the same day. The appellant
objected to the “Court’s rulings on specific visitation and the
restrictions imposed, specifically including the restrictions on
visitation in the presence of April Wade.”
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In support of the trial judge’s decision to exclude all
contact between Tyler and Wade, we review the entire record. We
commence with the Supreme Court’s decision in Bottoms v.
Bottoms, 249 Va. 410, 457 S.E.2d 102 (1995), reversing the Court
of Appeals and reinstating the Henrico County Circuit Court
decision which awarded custody to grandmother and denied contact
with Wade. The facts upon which the decision was based are
clearly set forth in the opinion. It is against this background
that we interpret the evidence before us.
Here, the evidence in the record supports the trial court’s
rulings excluding Wade from contact with Tyler and refusing
mother’s request for additional visitation. The court indicated
that it gave “careful consideration” to “all” the evidence,
which included undisputed testimony that Tyler “is doing fine”
under the current arrangement. The record also contained expert
testimony that being able to observe mother interact with Wade
might reduce Tyler’s risk of developmental problems in the
future. However, the trial court was entitled to conclude that
information upon which the expert relied in forming his opinion
was unreliable and incomplete in that he did not interview the
child’s legal custodian and, therefore, it was entitled to
reject the expert’s opinion. See Street v. Street, 25 Va. App.
380, 387-89, 488 S.E.2d 655, 668-69 (1997) (en banc). Further,
Dr. Stolberg testified that Tyler was a lot better now than he
was several years ago. He was now “healthy, friendly, upbeat,
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real friendly.” The guardian ad litem also opined that Tyler’s
best interests would be served by expanded visitation. Although
the recommendation of the guardian ad litem “should not be
disregarded,” it is “not binding or controlling.” Bottoms, 249
Va. at 420, 457 S.E.2d at 108.
Viewing the evidence in the light most favorable to the
prevailing party below, we find that the trial court did not
abuse its discretion in refusing to modify its order of
August 20, 1996, requiring that “[v]isitation shall occur
outside the presence of April Wade, it being expressly provided
that Sharon Bottoms will permit no contact between Tyler and
April Wade.”
Mother complains that the trial court erred when it denied
her request to participate in Tyler’s educational development.
She testified that she would like to pick Tyler up at his school
on her visitation day and talk to his teachers.
Grandmother in her testimony objected to mother’s picking
Tyler up at school on the Friday when mother has visitation.
Grandmother stated that she likes to see Tyler on Friday before
he leaves for his visitation to assure that he is properly
dressed and in condition for the visit. Grandmother also
objected to mother’s attending PTA meetings or having any
physical meetings at the school. Grandmother testified that
mother received the same reports from the school on Tyler that
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grandmother received. Grandmother had no objections to mother’s
contacting Tyler’s teacher directly by telephone.
The trial court in its order of March 4, 1998, directed
that grandmother provide mother “all academic records of the
child, but such shall not be deemed to deny to Sharon Bottoms
access to records pursuant to Code § 20-124.6” which provides
that “[n]otwithstanding any other provision of law, neither
parent shall be denied access to the academic, medical, hospital
or other health records of that parent’s minor child unless
otherwise ordered by the court for good cause shown.”
The authority vested in a trial court to
decide issues concerning the care, custody,
support and maintenance of the minor
children, the visitation rights of the
non-custodial parent, and the extent to
which those rights and responsibilities
shall be apportioned between estranged
parents is a matter of judicial discretion
which courts must exercise with the welfare
of the children as the paramount
consideration.
Eichelberger v. Eichelberger, 2 Va. App. 409, 412, 345 S.E.2d
10, 11 (1986). We find that the trial court did not abuse its
discretion when it denied mother’s request to participate in
Tyler’s school activities against the wishes of the child’s
legal custodian.
Mother complains that the trial court erred when it denied
her request for expanded visitation rights and failed to order
family counseling. We find that both of these issues come
within the broad discretion granted to trial courts to decide
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care, custody, and visitation rights of minor children. Under
the facts and circumstances of this case as previously described
herein, we find that the trial judge did not abuse his
discretion in establishing visitation rights between the mother
and the child, and we find that he did not abuse his discretion
in refusing to order family counseling.
For the reasons stated, we affirm the decision of the trial
court.
Affirmed.
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